The European Commission of Human Rights sitting in private on

10 July 1986, the following members being present:

                    MM. J.A. FROWEIN, Acting President

                        G. SPERDUTI

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                        G. TENEKIDES

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 21 March 1984

by W.S.W. against the United Kingdom and registered

on 23 March 1984 under file No. 10871/84;

        Having regard to:

-       the observations submitted by the respondent Government on

26 June 1985 and the observations in reply submitted by the applicant

on 19 September 1985;

-       the further observations submitted by the respondent

Government on 3 December 1985 and the comments and further comments in

reply submitted by the applicant on 15 January and 1 February 1986

respectively;

-       the hearing of the parties on the admissibility and merits of

the application on 10 July 1986;

        Having deliberated,

        Decides as follows:

THE FACTS

        The applicant claims to be a stateless person, born in South

Africa in 1940 and a journalist by profession.  The facts may be

summarised as follows:

        The applicant states that he is a political refugee from South

Africa with permanent, settled status in the United Kingdom.

        In 1981 a book, "Inside BOSS" (ie the South African Bureau of

State Security), was published by Penguin Books Ltd (London), the

author being Gordon Winter.  Chapter 26 of that book is entitled "The

Smearing of S. W.", the applicant.  The tenor of the chapter is

reflected in its first two paragraphs:

        "If any man has good cause to loathe me, it is S.W., a

        South African born photo-journalist.  In collusion with BOSS

        I took part in a campaign of denigration aimed at smearing

        him as a BOSS spy.  It was so successful that the smear is

        still believed in London - even by some British security men.

        In order to protect myself against S.'s freak discovery that

        I was a BOSS agent, I deliberately befriended his wife ....,

        took nude photographs of her in my London flat and circulated

        them among South African exiles to 'prove' Stan was making

        false claims against me because he was jealous of my affair

        with ."

        Amongst the various intimate references to the applicant's

private life, appears the following:

        "W., W. S. alias 'S.' - adult White Jewish

        male, born Johannesburg 10.2.1941 charged under Immorality

        Act 1966 after arrest by police in a Cape Town bedroom with

        , an adult, coloured female born in

        ....  Case withdrawn through lack

        of evidence that illegal sexual intercourse actually planned

        although the female was wearing trousers only as she lay in

        bed and W. was naked."

        "....  As I got to know her well, the truth about her life with

        S. emerged.  She had loved and respected him;  he had been

        the first man to take her to bed and had been a good lover.

        But during the previous eighteen months he had become so

        absorbed in his work and politics that he had neglected her.

        She felt physically and mentally frustrated.  At the time he

        had gone to South Africa.  She was actually considering

        divorce...."

        The applicant submits that some of the allegations in the book

were true, of others he could not prove their untruth and others were

false, but all were inextricably interwoven so as to constitute a

gross invasion of his and his former wife's privacy, a matter not

generally protected under English law (cf Report of Younger Committee

on Privacy, Cmnd, 5012, 1972).  It appears that his former wife is now

living in the United Kingdom.

        A total of 15,000 copies of the book have reportedly been sold

or distributed, although in an interview in "The Observer" newspaper,

the editorial director of the publishers has stated that a reprint of

the book was unlikely because sales declined to 250 copies in the last

quarter of 1982.  It appears that the book has not been withdrawn,

however, although it may now be out of print.

        In respect of those matters which were clearly defamatory and

untrue, involving the applicant's integrity as a journalist, the

applicant did institute defamation proceedings against the publishers.

He had sought legal advice in Zimbabwe in December 1981.  On expulsion

from that country, following Mr Winter's successful smear campaign,

the applicant sought legal advice from the National Council for Civil

Liberties in London.  They, a firm of solicitors (under the Legal

Advice and Assistance Scheme which then provided for limited

assistance to the value of £25 plus value added tax) and a well known

barrister (gratuitously) advised him that certain allegations in the

book were "obviously libellous" but that he would need £20,000 to

engage the services of a lawyer with defamation expertise, legal aid

being unavailable for such matters.  The National Union of

Journalists, whom the applicant also approached, although sympathetic,

would not, as a matter of policy, become involved in cases of civil

defamation.

        As the applicant had not received any detailed advice on

defamation law and procedure, he researched the subject and in

December 1983 began correspondence with Penguin Books Ltd.  He

required a full retraction and a public apology in open court and in a

national newspaper, the withdrawal of the book, compensation and

indemnity for costs incurred.  The applicant issued a writ against the

publishers on 27 January 1984 setting out his claim.  A defence was

entered on 24 April 1984 denying the claim.  In the meantime

settlement negotiations were undertaken mostly by meetings and

telephone conversations between the applicant and the publishers'

solicitors.  Eventually a sum of £5,000 was offered to the applicant.

Counsel was consulted through solicitors regarding this quantum.  The

applicant states that he was advised as to the technical inadequacy of

his statement of claim and that, lacking funds, he should not proceed

as a plaintiff in person against skilled defence counsel, but should

accept the offer.

        On 4 July 1984 solicitors wrote to the applicant enclosing a

letter from the publishers clarifying that they were satisfied that

the applicant had at no time assisted the military wing of the African

National Congress of South Africa or had been a member of the South

African Communist Party.  Regret was also expressed about statements

in Chapter 26 of "Inside BOSS", understood to reflect on the

applicant's integrity as a journalist.  A cheque for £5,115 was also

enclosed, £115 being for counsel's fees.  The applicant then withdrew

his suit.

        The notice of discontinuance and withdrawal merely stated that

the applicant wholly discontinued and withdrew all his claims in the

action, by consent, with no order as to costs.  The applicant

calculates his special damages alone at £50,000;  he also had legal

costs of £666.42 to pay.

        The applicant alleges that notwithstanding an article in the

"Observer" newspaper of 1 May 1983, there has been no media coverage

of the book as it was, and still is, sub judice, there being

claims from other people outstanding against the publishers.  Therefore

he has been unable publicly and comprehensively to reply to all the

allegations in the book because publishers were wary of possible

action against them under the Contempt of Court Act 1981.

        The Director of Public Prosecutions could not be persuaded to

institute criminal libel or extradition proceedings against the

author, who lives outside the United Kingdom.

COMPLAINTS

        The applicant complains of the absence of a remedy in English

law, including a right of reply, for gross invasions of privacy

arising from matters published in book form and which are not

necessarily defamatory or untrue.

        He submits that the concept of privacy has no satisfactory

definition in English law, a distinction being made from defamation,

which in itself and with the unavailability of legal aid, provides

inadequate protection for privacy.

        The applicant claims to be a direct victim of a violation of

his right to respect for his private life and his home ensured by

Article 8 of the Convention.  He also claims to be an indirect victim

in respect of the invasion of his former wife's right to privacy, she

being unable to enter into direct litigation herself for fear of

reprisals from the South African Secret Police.

        The applicant submits that he has no domestic remedies.  He

also contends that the settlement is not relevant to this part of his

complaint, being a settlement only in respect of the existing English

law of defamation.

        The applicant claims that the absence of civil legal aid for

defamation cases, involving a specialised and complex area of law,

constitutes a denial of access to court contrary to Article 6 para. 1

of the Convention.  He also claims to be a victim of a violation of

Article 5 of the Convention, his security of person being put at risk

by the allegations in the book "Inside BOSS" that he was a terrorist

or subversive.  He was thus made a target for either right wing

extremists or African nationalists who may think, for this and other

reasons in the book, that he is a BOSS double agent.  He had no remedy

under English law for this situation.

        Finally he comments that the settlement which he made could

not take into account his further claim under the Convention to be an

indirect victim of a breach of Article 8 because of the calumnious

statements made about the private life of his ex-wife.

SUBMISSIONS OF THE PARTIES

A.      The Respondent Government

1.      General and factual submissions

        The Government point out that the applicant accepted the offer

of settlement made by the publishers after he had been advised by

counsel, and that this advice may well have included advice as to the

likelihood of damages at the trial had he continued with the action.

The Government contest the amount of special damages which the

applicant claims he would have been entitled to; at least a certain

part of that sum was due to expenses incurred in having to leave

Zimbabwe as a result of restrictions which affected not only the

applicant but all persons leaving that country, for whatever reason.

        Moreover, having regard to settlements obtained in other

cases, and the difficulty in assessing damages in defamation cases,

the applicant may well have received considerably less than £50,000

if the action had gone to trial.

        The Government note that there was a certain amount of media

coverage of the book, and they refer to the article in the "Observer"

newspaper of 1 May 1983.  The Government also note that the applicant

himself issued a press release concerning the book.  The Government

dispute that the law of contempt of court would have prevented

publication of the applicant's reply to the allegations made in

"Inside BOSS" and point out that, in any event, the applicant does not

allege that proceedings for contempt were brought against him.  The

Government submit that even if one trial concerning "Inside BOSS" was

"repeatedly being set down for trial and being postponed", that would

not necessarily mean that a publication referring to those proceedings

would automatically amount to a contempt of court, since it must also

be shown that the publication creates a serious risk that the course

of justice in the proceedings in question would be seriously impeded

or prejudiced (see post).

2.      Domestic law and practice

        The Government consider the following three areas of law to be

relevant to this application:

        a)      Protection of privacy

        b)      Availability of legal aid

        c)      Contempt of Court

a)      Protection of Privacy

        The Government deny that it can be inferred from the Younger

Report (op. cit.) that English law inadequately protects a right to

privacy.  The Younger Report (Chapter 5) gave a description of the

legal protection available in Great Britain in respect of invasions of

privacy and the Government refer to that Chapter and Appendix I to the

Report.  The Government also submit that the whole aim of the Younger

Report was to consider the balance which must be struck between, on

the one hand, the individual's right to privacy and, on the other

hand, other individuals' right to freedom of expression.  The Report

concluded that a system of specific remedies for specific wrongs

constituted adequate protection of privacy, even without a "blanket"

definition and protection of a right to privacy as such.

        As well as defamation, the Government consider that an action

for a breach of confidence could have been brought by the applicant.

The action for breach of confidence is described as a civil remedy

affording protection against the disclosure or use of information

which is not publicly known and which has been entrusted to a person

in circumstances imposing an obligation not to disclose or use that

information without the authority of the person who imparted it.

The action for a breach of confidence has existed for many years and

it is clear that English courts do recognise the relationship of

husband and wife as giving rise, in certain circumstances, to

obligations of confidence.  One example was the case of the Duchess of

Argyle v. the Duke of Argyle and others [1967] Ch. 302 in which the

plaintiff sought and obtained an injunction against the defendant to

restrain him from making statements about her which were said to be

secrets of the plaintiff relating to her private life, personal

affairs or private conduct, communicated to the defendant in

confidence during the subsistence of his marriage to the plaintiff and

not hitherto made public property.  An injunction was also granted, in

similar terms, against the second and third defendants who were,

respectively, the editor and proprietor of a newspaper.

b)      Legal Aid

        The availability of legal aid and the conditions on which it

may be granted to a person to pursue civil proceedings before the

courts in England and Wales is governed by Part I of the Legal Aid Act

1974 (as amended by the Legal Aid Act 1979 with effect from

18 April 1980) and regulations made under it.  Section 7 of the 1974

Act provides that legal aid is available in connection with many types

of proceedings before courts and tribunals in England and Wales, but

some forms of proceedings, including proceedings wholly or partly in

respect of defamation, are excluded by virtue of Part II of Schedule I

to the 1974 Act.  Legal aid consists of full representation by a

solicitor and, so far as necessary, by counsel.

        A secondary form of legal aid provides for limited advice and

assistance on the application of English law to circumstances which

have arisen in relation to the person seeking advice and to any steps

which that person might appropriately take.  It is not subject to the

same restrictions as formal legal aid, and can consequently be granted

for discussions concerning defamation.  It does not cover

representation in proceedings, and is not available to anyone to whom

has been issued a legal aid certificate in respect of any proceedings.

c)      Contempt of court

        The law on contempt of court aims at ensuring that the course

of justice is not deflected or interfered with, and not merely

preserving the dignity of the courts or their judges.

        The Contempt of Court Act 1981 refers to a rule of law whereby

conduct tending to interfere with the course of justice may be treated

as contempt of court regardless of intent to commit such interference.

Limitations on the rule include that it only applies to "active"

proceedings, and then only to publications which create a substantial

risk that the course of justice, in particular proceedings, will be

seriously impeded or prejudiced.  The mere institution of proceedings

is not sufficient to activate the rule, as a hearing must have been

fixed before the 'strict liability rule' operates.

        Defences to the provision include the defence of innocent

publication or distribution; a new defence in respect of fair and

accurate reporting of legal proceedings held in public, published

contemporaneously and in good faith; a provision that a publication is

not to be treated as contempt even where it does tend to interfere

with the course of justice, in particular legal proceedings if the

publication is made as, or as part of, a discussion in good faith of

public affairs or other matters of general public interest and that

the risk of impediment or prejudice to the particular legal

proceedings is merely incidental to the discussion;  existing common

law defences are preserved.

3.      Admissibility

a)      "Indirect" victim

        The Government contend that as there was no longer any legal

connection between the applicant and his wife when "Inside BOSS" was

published, even if the former wife is "unable to enter into direct

litigation herself for fear of reprisals from the South African

Secret Police", this is not a matter which can form part of an

admissible claim from the applicant under Article 25 of the Convention.

The Government submit that the Convention cannot be interpreted to

mean that an application may be considered from someone claiming to be

"an indirect victim" on behalf of some other person to whom he has

no legal connection and who, herself, is unwilling to make an

application under Article 25 of the Convention.

b)      Article 8

        The Government dispute the applicant's contention that there

is no remedy relating to intrusions of privacy arising from matters

published in book form.  The Government state that much of the matter

complained of was disclosed by his ex-wife, arguably in breach of the

confidence which English law implies into the relationship of

marriage.  The word "arguably" is used because it is impossible to

predict precisely what would have happened if the matter had been

brought before the English courts.  The Government submit,

nevertheless, that there would have been compelling reasons for the

court to have granted a similar form of injunction as was granted in

Argyle v.  Argyle.  Insofar as the applicant did not pursue this

remedy, the Government contend that he cannot be regarded as having

exhausted his domestic remedies within the meaning of Article 26 of the

Convention.  In the alternative, the Government contend that this part

of the application discloses no breach of the Convention.

        In relation to the disclosure of information relating to the

applicant contained in South African police records, the Government

draw the Commission's attention to the introduction to "Inside BOSS"

which contains a general apology in the following terms:

        "Another apology should perhaps go to some of the

        individuals named in various excerpts I have taken from

        secret BOSS files.  While most of them will no doubt feel

        honoured to be on BOSS's hate list, it is important to

        emphasise that the BOSS assessment of a person was not

        always right.  My use of these BOSS excerpts is, again,

        mainly intended to demonstrate the often strange thinking

        process of the men who rule 'White' South Africa."

        The Government consider that the question to be answered is

whether an alleged lack of remedies to prevent the disclosure of the

truth (in the absence of breach of confidence) can be described as an

unjustified interference with respect for the applicant's right to

private life.

        The Government make the point that the Government did not

"interfere" with the applicant's private life, and refer to the Airey

judgment (Eur.  Court H.R., judgment of 9 October 1979, Series A no. 32)

in which the Court did not consider that Ireland could be said to have

interfered with the applicant's private life, and where the Court also

stated that the object of Article 8 is essentially to protect the

individual against arbitrary interference by public authorities.  The

Govenment note that in the Commission's opinion in the Van Oosterwijck

case (Comm.  Report 1.3.79) the Commission considered that Article 8

was "predominantly negative" in the sense that its object was

essentially that of protecting individuals against arbitrary

interference by public authorities in his private or family life.

        Against arguments for the lack of third party effect as

implied by Article 8, the Government accept that the Court has

considered that there may be positive obligations inherent in that

Article, but contend that in determining the scope of any such

positive obligation the State has a wide margin of appreciation.

        The Government refer to the Sporrong and Lönnroth judgment

(Eur.  Court of H.R., judgment of 23 September 1982, Series A no. 52,

para. 69) in which the Court commented that the search for balance

between the general interest of the community and the protection of

individuals' fundamental rights is inherent in the whole Convention.

The Government point to the fact that questions regarding the

activities of foreign intelligence agents within national territory

must be a matter of substantial public interest and the public

interest in a publication (rather the suppression) of the truth must

be weighed against the embarrassment to the individuals concerned by

publication of extracts from foreign police records.

        The Government emphasise that paragraph 2 of Article 8

provides for restrictions on the grounds, inter alia, of the

protection of the rights and freedoms of others, and that the remedies

sought in the present case could have a substantial effect on the

right to freedom of expression guaranteed by Article 10 of the

Convention.

        As to the absence of a right of reply to the allegations

made in "Inside BOSS", the Government emphasise first, that the

applicant was at liberty to issue a statement as to the allegations

made against him without risk of being found in contempt of court,

secondly that he did indeed issue such a press statement and finally,

that an undertaking to issue a statement could have been part of the

terms of settlement of the action against the publishers.  The

applicant could also have published the contents of the letter of

apology addressed to him by Penguin Books Limited on 20 June 1984.

c)      Article 6

        The Government submit that Article 6 para. 1 of the Convention

leaves to the State concerned a freedom of choice of the means to be

used towads the end of providing effective right of access to the

courts and does not place an obligation on the State to provide legal

aid for every dispute relating to a "civil right".  The Government

further contend that in operating any legal aid system a balance must

be struck between the private interests of the individual litigant and

the public interest that public money should not be used to finance

suits or appeals which are improperly brought or stand no prospects of

success.  The Government state that under the Legal Aid Act 1974 an

applicant for legal aid must show that he has reasonable ground for

taking, defending or being a party to the proceedings in connection

with which legal aid is sought, and furthermore, he may be refused

legal aid if, in the particular circumstances of the case, it appears

unreasonable that he should receive it.  The Government note that in X

v. the United Kingdom (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95 para.

16) the Commission found that legal aid systems can only operate

effectively, given the limited resources available, by establishing

machinery to select which cases should  be so aided.  Defamation

proceedings are excluded from the scope of the Legal Aid Act on the

basis that experience has shown that they were among a class of

actions in which there was most room for bringing vexatious,

frivolous, unmeritorious or unnecessary claims.  In the Government's

submission, an interpretation of the Convention which required a State

to provide public funds for proceedings of this nature would be

fundamentally repugnant, because it would involve the State in a

totally unjustifiable use of public money in an area in which

resources are, in any event, limited and in which there are other

competing claims possessing much greater merit.

        The Government note that the applicant in fact secured a

settlement which awarded him £5,115.  He thus gained access to

court in the sense that he was able to issue the writ and the

statement of claim, and the whole action was settled within less than

six months from the date of the writ.  The Government contend that the

applicant's claim to a sum of £50,000 damages is difficult to

substantiate, and it must be doubtful whether the applicant could have

recovered damages in respect of the claims even if proceedings had

continued.  The Government invite the Commission to decline to

speculate on the damages the applicant would have received if he had

been legally aided and proceeded to trial.  To do so would be to

usurp the function of a national judge (and, in defamation cases such

as the present, of the jury, if chosen, as well).

        The Government point out that the publishers' position was not

as strong as may appear, because they would have had to bear in mind

the prospects of defending the action and being unable to recover

costs even if they won.

4.      Conclusion

        The Government request the Commission to dismiss the

applicant's claim to be "an indirect victim" of a breach of Article 8

as incompatible or, alternatively, as manifestly ill-founded.

        The Government request the Commission to dismiss the claim

under Articles 6 and 8 as incompatible, manifestly ill-founded or not

disclosing a breach of the Convention on the facts.

B.      The applicant

1.      General and Factual Submissions

        The applicant, through his representatives, states the reasons

why his case was fundamentally flawed and why, accordingly, the

settlement could not possibly hope to reflect the damage actually

suffered by him.  The problems presented an insuperable obstacle for

the applicant because, even if told of the existence of the defects,

he was not trained and skilful enough to prepare the amendments

necessary to cure them and then argue for leave to amend before a High

Court Master.  Even if an application to amend the pleadings had been

successful, the applicant would still have had to pay the costs of the

defendant on the amendment, it having been made by the applicant.  An

adjournment and additional costs would have been incurred had the

applicant taken the case to the court and requested leave to amend

there.  The sympathy courts tend to show to litigants in person could

not have extended far enough to remedy these difficulties.

        The technical difficulties which beset the applicant were the

following:  by not having joined the author of "Inside BOSS" as a

defendant, the applicant would no longer have been able to prove

malicious intent on the part of the author.  Such proof would have

been necessary to negate any defence the publishers may have

brought of "fair comment"; problems with obtaining the author's

address for service of proceedings would have required further

amendments to the statement of claim, which in turn would have

required a further application for time for service of an amended

statement of claim; because of the way the applicant's statement of

claim was worded, he could not plead innuendo in connection with an

inference in Chapter 26 of "Inside BOSS" that he was associated with a

known terrorist (whilst skilled counsel could perhaps have

distinguished the applicant's case from the general rule, the

applicant could not hope so to do); the applicant omitted large

sections of libellous material from his statement of claim; paragraph

7 of the applicant's statement of claim (relating to innuendo) and the

sections dealing with malicious and/or injurious falsehoods were both

incorrectly pleaded.  Counsel concluded that the applicant should

either appoint a skilled solicitor and counsel or, alternatively,

should accept the settlement offered by the publishers.  In reply to

these defects in the applicant's case the Government point out that

the Court would have had a discretion to allow late amendments, and

that the applicant need not have been penalised in costs if the Court

had seen fit.

        The applicant emphasises that the figure of £50,000 was only

in respect of special damage, and that he also sought general damages

in respect of loss of reputation, injured feelings and loss of

dignity, and exemplary damages.  Had the claim succeeded, the

applicant maintains that a successful conclusion to the libel action

could have resulted in a award in excess of £50,000.

        The applicant states that his press release was a failure

because, although the law of contempt may not have fettered its

publication, editors and publishers were apprehensive about being in

contempt to such a degree that the perceived risks of publication were

not outweighed by the news value of the press release.  The

applicant's approach to Penguin Books with the proposition that a

comprehensive reply to the book "Inside BOSS", and particularly

Chapter 26, be published was declined.

2.      Domestic Law and Practice

        The applicant submits that, whilst defamation covers some

areas within the scope of an individual's rights under Article 8 of

the Convention, in many cases defamation does not constitute an

adequate remedy.  The applicant states that he did attempt,

unsuccessfully, other remedies, in particular, he tried to have

proceedings instituted against Gordon Winter under the Offences

against the Person Act 1861.  He also tried to have the author of the

book extradited to the United Kingdom.

        The applicant states that only two limited matters might have

given rise to an action for breach of confidence, but that they were

both untrue and the doctrine of "confidentiality" would therefore have

no application.  Further, he refers to the Law Commission's Report on

Breach of Confidence (Cmnd. 8388) in which extensive amendments to the

law on breach of confidence were proposed.

3.      Admissibility

a)      "Indirect" Victim

        The applicant submits that an intrusion into his former wife's

privacy may be a direct breach of his Article 8 rights.  The applicant

states that he and his former wife still have a sufficiently close

link in their minds and in the minds of others to found the working of

an "indirect victim".

b)      Article 8

        The applicant points to the incompleteness of the protection

of privacy in the United Kingdom, in particular in that covert or

indeed open surveillance can be conducted at a distance, recorded on

film or video tape or published in a book or newspaper.  Dissemination

of the material so recorded is also not prevented.

        In regard to the general apology in "Inside BOSS", the

applicant states first, that the apology is general, whilst the

allegations against the applicant are detailed; and secondly, that the

apology criticises BOSS's "assessment" and not the purported factual

record of the applicant's history and activities.

        On the question of third party effect of the Convention and,

particularly, Article 8, the applicant refers to Article 1 of the

Convention and states that if the Convention were directly applicable

in the United Kingdom, the Government would be responsible for the

law's failure to enforce the Article 8 right against the publishers of

"Inside BOSS".  The applicant submits that no distinction should be

made between the position in one High Contracting Party and another

and the Government should therefore provide the legal framework for

an accessible legal procedure enforcing the Article 8 right.

        The applicant states that if the Government's reading as to

the purely negative effect of Article 8 is correct, then that would

mean that the Govenment have no positive obligations to ensure

"respect" for private and family life, and certainly none in respect

of the mass publication and dissemination of gross intrusion into an

individual's privacy.

        The applicant states that the balance referred to by the

Government and contained in the Sporrong and Lönnroth judgment must

be achieved by some form of machinery in order to comply with Article

13 of the Convention.  The applicant submits that an author, publisher

or investigator should not be the judge of this crucial issue, which

should be able to be brought before a court.

        With regard to the interaction between Articles 10 and 8 of

the Convention, the applicant emphasises that freedom of expression is

limited to things in "the public interest".  He accepts that gross

intrusions into an individual's private and family life are likely to

be of great public interest, but regards the question of whether they

are "in the public interest" as entirely different.

        As to the applicant's attempt to reply to the allegations in

"Inside BOSS" the applicant states, first, that editors and publishers

are and were wary of the law of contempt; secondly, that the applicant

could not afford to buy advertising space or publish his own pamphlet

and, thirdly, that the applicant's press statement lacked the

sensational appeal that would interest editors and publishers.

Further, the applicant was not in a position to bargain about the

terms of the settlement offered by the publishers.  The applicant

accepts that a right of reply exists in the passive sense that

nothing (save the law of contempt) would prevent a reply, but on the

other hand, there is no positive obligation.  The applicant again

refers to Article 13 of the Convention.

c)      Article 6

        The applicant submits that his case concerned an

extraordinarily complex area of law, and that its facts were also of

unusual complexity.  He refers to paragraph 26 of the judgment of the

Court in the Airey case.  The applicant accepts that checks and

balances are necessary in the construction of a system of legal aid,

but points out that an absolute bar on the granting of legal aid for

even the most meritorious action by a poor plaintiff against a wealthy

defendant is tantamount to granting a licence to the unscrupulous to

defame and perhaps ruin the impecunious.  The applicant contends that

this amounts to a consequential breach of Article 14 of the

Convention.  The applicant states that the fact that his libel suit

against Penguin Books was as successful as it was, means that his

action could not be described as vexatious or frivolous.  The

applicant recalls that the Law Society supports the extension of legal

aid to some defamation proceedings, and that indeed, the senior

partner of the firm of solicitors acting for the publishers of Penguin

Books has written to The Times newspaper urging the Government to

extend legal aid to defamation proceedings.

        With regard to the size of the applicant's pecuniary claim

against the publishers of "Inside BOSS", the applicant refers to one

recent case in which each of nine plaintiffs received £25,000 in

respect of hurt reputation and exemplary damages, and submits that the

most recent cases in which derisory damages were granted took place

over twenty years ago.

4.      Conclusions

        The applicant submits that he is both a direct and an indirect

victim of a breach of Article 8 of the Convention.

        He denies that the claims under Articles 6 and 8 are

incompatible with or manifestly ill-founded under the Convention, and

avers that the facts disclose a breach of the Convention.  He requests

the Commission to declare the application admissible.

THE LAW

1.      The applicant claims to bring the present application both on

his own behalf and as an indirect victim for affronts suffered by his

wife.

        The Government have contended that the applicant cannot claim

to be an indirect victim in respect of his former wife's alleged

problems.

        The Commission recalls that the general rule concerning the

notion of victim is that the person bringing the application must be

"the person directly affected by the act or omission which is at

issue, the existence of a violation being conceivable even in the

absence of prejudice ... " (Eur.  Court H.R., Eckle judgment of

15 July 1982, Series A no. 51 para. 66).  This general rule is,

however, subject to variation in certain circumstances, such as a

close relationship with an applicant in cases where the applicant may

be said himself to have suffered injury as a result of the contested

actions and where the direct victim is unable to bring a complaint

himself (cf.  No. 7467/76, Dec. 13.12.76, D.R. 8 p. 220).

        In the present case, the Commission notes that the applicant

is no longer married to his former wife, and it appears that she is in

the United Kingdom.

        The Commission finds that, to the extent that the applicant

purports to bring this application on behalf of his former wife, he

has neither shown that he is authorised to do so by her, nor has he

shown that she is prevented from bringing an application herself.  To

the extent that he complains that the alleged interferences with his

former wife's rights, as guaranteed by the Convention, affect his

rights, the Commission finds that the applicant has not submitted any

substantial evidence which would support this contention.

        It follows that this part of the application is incompatible

ratione personae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

2.      The applicant alleges a violation of Article 5 (Art. 5) of the

Convention in that his security of person was put at risk by

allegations made in the book "Inside BOSS".

        The Commission recalls in this connection that the words

"liberty and security" must be read together and that they refer to

physical liberty and to freedom from arbitrary arrest and detention or

a threat thereof (cf.  No. 5573/72, Dec. 16.7.76, D.R. 7 p. 8,

Arrowsmith v. the United Kingdom, Comm.  Report 12.10.78, D.R. 19 p. 5

and No. 8334/78, Dec. 7.5.81, D.R. 24 p. 103).  The applicant has not

shown that he risked such arbitrary arrest or detention as a result of

the action or inaction of the respondent Government.

        It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.      The applicant alleges a violation of Article 8 (Art. 8) of the

Convention in that the publication of "Inside BOSS" involved

interferences with his private life and home which could not be

remedied under English law.  Article 8 (Art. 8) provides as follows:

        "1.     Everyone has the right to respect for his private

        and family life, his home and his correspondence.

        2.      There shall be no interference by a public authority

        with the exercise of this right except such as is in

        accordance with the law and is necessary in a democratic

        society in the interests of national security, public safety

        or the economic well-being of the country, for the

        prevention of disorder or crime, for the protection of

        health or morals, or for the protection of the rights and

        freedoms of others."

        The Commission's first task in this respect is to

determine, for the purposes of Article 25 (Art. 25) of the Convention, whether

the applicant may claim to be a victim of a violation of Article 8 (ARt. 8).

In this connection, the Commission notes the settlement which the applicant

reached with the publishers of the book, by which he agreed to withdraw the

writ he had issued for defamation on payment of £5,000 plus £115 towards his

legal costs, together with a letter of apology by which the publishers accepted

that the applicant was involved with neither the military wing of the African

National Congress nor the South African Communist Party, and that any

reflection on his integrity as a journalist was regretted. Accordingly, any

complaints which the applicant had which were included in the settlement of the

defamation case must be regarded as settled.  However, part of the applicant's

complaints consists of the very fact that the English law of defamation is

limited in its scope to such an extent that it cannot be regarded as providing

adequate protection for private life and home as guaranteed by Article 8 (Art.

8) of the Convention.

        In this context, it suffices for the Commission to note the

applicant's complaints are not limited to the scope of his defamation

action, and accordingly it cannot be said that the settlement entirely

covered the same ground as the present application before the

Commission.

        The applicant may, therefore, claim to be a victim of a violation of

his rights guaranteed under Article 8 (Art. 8) of the Convention.

        The substance of the applicant's claim under Article 8 (Art. 8) of the

Convention (insofar as it relates to the applicant and not to his former wife)

is that the publication of "Inside BOSS" constituted an interference with his

Article 8 (Art. 8) rights which could not be remedied.

        The Government contended that apart from the remedy of defamation

proceedings, the applicant also had a remedy in proceedings for breach of

confidence, which would have met his remaining complaints, but which he did not

bring.  Accordingly he failed to exhaust domestic remedies, as required by

Article 26 (Art. 26) of the Convention.

        However, the Commission does not accept that the remedy of breach of

confidence, taken alone or in conjunction with an action in defamation, may

constitute an adequate or effective remedy within the meaning of Article 26

(Art. 26).  In particular, the Commission notes the uncertainty as to the

precise scope of the remedy of breach of confidence and also the disquiet

expressed by the Law Commission in its report on Breach of Confidence (Cmnd.

8388) as to the extent of that remedy.  Accordingly, this part of the

application cannot be rejected for non-exhaustion of domestic remedies.

        As regards the extent of the applicant's claim, the Commission notes,

first, that the alleged violation of Article 8 (Art. 8) of the Convention by

reason of the lack of a remedy for the applicant's complaints in English law

must be taken to mean only English law so far as it falls outside the scope of

defamation, as in that respect, the applicant did indeed have a remedy which he

used to the extent that he obtained a settlement with the publishers.

        The Commission would next note that there is no question in the present

case of any involvement by the respondent Government in the publication of

"Inside BOSS".  The applicant is therefore complaining about a lack of

restriction on a third party, and is alleging that this omission involves the

respondent Government's responsibility.  In this regard the applicant is, in

effect, calling for a positive obligation to be imposed on States to interfere

with other individuals' right to freedom of expression, a right guaranteed by

Article 10 (Art. 10) of the Convention.  However, the Commission considers that

Article 10 (Art. 10) must be taken into account when establishing the positive

obligations which may be imposed by Article 8 (Art. 8) of the Convention.

        The question remains, however, to what extent the High

Contracting Party must impose positive obligations on persons within

its jurisdiction in order to ensure compliance with Article 8 (Art. 8) of the

Convention.  In this respect, the Commission recalls the previous

case-law of the Convention organs that, although positive obligations

may be required by Article 8 (Art. 8) of the Convention, the way in which a

High Contracting Party may meet such obligations is largely within its

discretion (cf., for example, Eur.  Court H.R. Abdulaziz, Cabales and

Balkandali judgment of 28 May 1985, Series A no. 84 para. 67 and

further references contained there).  The Commission notes the public

debate in the United Kingdom on reforms to the law of privacy with the

conclusions of the Law Commission that the existing law of breach of

confidence should be replaced by a statutory tort, contrasted with the

conclusions of the Younger Report on privacy, which expressed general

satisfaction with the various existing remedies for breaches of

privacy (Cmnd. 5012).

        In the present case the Commission does not consider that the

absence of an actionable right to privacy under English law shows a

lack of respect for the applicant's private life and his home.  Whilst

it is true that this state of the law gives greater protection to

other individuals' freedom of expression, the applicant's right to

privacy was not wholly unprotected, as was shown by his defamation

action and settlement, and his own liberty to publish.  The

Commission, therefore, concludes that the case does not disclose a

failure to respect the applicant's rights under Article 8 (Art. 8) of the

Convention.

        It follows that this part of the application is manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.      The applicant complains under Article 6 (Art. 6) of the Convention

that, although he was able to secure a settlement which

included a payment of £5,000 plus £115 costs in respect of his

defamation action, the absolute bar on the grant of legal aid for

defamation in the United Kingdom prevented him from having access to court.  He

alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention which

guarantees a fair hearing in the determination of civil rights and obligations

and, implicitly, access to court (cf.  Eur.  Court H.R., Golder judgment of 21

February 1975, Series A no. 18).

        The Government contended that the applicant had adequate access to

court, as is shown by the settlement of his defamation action, and that the

unavailability of legal aid for defamation proceedings is reasonable given the

limited financial resources of the legal aid fund and the need to establish

certain priorities for legal assistance.

        The first question to be determined is whether the applicant may claim

to be a victim of a violation of Article 6 (Art. 6) of the Convention,

notwithstanding his litigation in person for defamation and settlement of his

claims.  The Commission considers that he may claim, under Article 25 (Art. 25)

of the Convention, to be a victim of a breach of Article 6 (Art. 6), because

the complaint before the Commission does not concern the merits of the

applicant's defamation suit, but the absence of legal aid for such proceedings,

a matter which may not be tested in a court of law being provided for by

statute (Part II of Schedule 1 to the Legal Aid Act 1974, as amended).

        The next question to be determined is whether the unavailability of

legal aid for defamation effectively denied the applicant access to court, as

ensured by Article 6 (Art. 6) of the Convention. In this respect the Commission

recalls that, unlike Article 6 para. 3 (c) (Art. 6-3-c) which expressly

provides for legal aid in criminal cases where necessary, the Convention does

not guarantee such a right of assistance in civil cases.  The means by which a

State ensures effective access to civil courts is thus within its margin of

appreciation (Eur.  Court H.R., Airey judgment of 9 October 1979, p. 15 para.

26).

        The Commission notes that even where legal aid may be available for

certain types of civil action, it is reasonable to impose conditions on its

availability involving, inter alia, the financial situation of the litigant or

the prospects of success of the proceedings (cf.  No. 8158/78, Dec. 10.7.80,

D.R. 21 p. 95).  The Commission considers, similarly, that, given the limited

financial resources of most civil legal aid schemes, it is not unreasonable to

exclude certain categories of legal proceedings from this form of assistance.

The fact that the English legal aid scheme excludes assistance in defamation

proceedings has not been shown to be arbitrary in the present case.

        The question remains, therefore, whether, despite the absence of legal

aid for defamation proceedings, the applicant was effectively denied access to

court, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.  However,

the facts of the case show that the applicant did have effective access to

court as a litigant in person, albeit inexperienced.  This is borne out by the

£5,000 settlement of the applicant's defamation claim, which settlement has not

been shown to be either derisory or unreasonable.  The Commission considers,

therefore, that the unavailability of legal aid for defamation proceedings in

the present case has not deprived the applicant of access to court contrary to

Article 6 para. 1 (Art. 6-1) of the Convention.

        It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THIS APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission    Acting President of the Commission

           (J. RAYMOND)                         (J.A. FROWEIN)